MINUTES OF THE MEETING
OF THE
ASSEMBLY COMMITTEE ON COMMERCE AND LABOR
Seventy-Eighth Session
April 13, 2015
The Committee on Commerce and Labor was called to order by
Chairman Randy Kirner at 2:34 p.m. on Monday, April 13, 2015, in Room 4100
of the Legislative Building, 401 South Carson Street, Carson City, Nevada. The
meeting was videoconferenced to Room 4406 of the Grant Sawyer State Office
Building, 555 East Washington Avenue, Las Vegas, Nevada. Copies of the
minutes, including the Agenda (Exhibit A), the Attendance Roster (Exhibit B),
and other substantive exhibits, are available and on file in the Research Library
of the Legislative Counsel Bureau and on the Nevada Legislature's website at
www.leg.state.nv.us/App/NELIS/REL/78th2015.
In addition, copies of the
audio or video of the meeting may be purchased, for personal use only,
through the Legislative Counsel Bureau's Publications Office (email:
[email protected]; telephone: 775-684-6835).
COMMITTEE MEMBERS PRESENT:
Assemblyman Randy Kirner, Chairman
Assemblywoman Victoria Seaman, Vice Chair
Assemblyman Paul Anderson
Assemblywoman Irene Bustamante Adams
Assemblywoman Maggie Carlton
Assemblywoman Olivia Diaz
Assemblyman John Ellison
Assemblywoman Michele Fiore
Assemblyman Ira Hansen
Assemblywoman Marilyn K. Kirkpatrick
Assemblywoman Dina Neal
Assemblyman Erven T. Nelson
Assemblyman James Ohrenschall
Assemblyman P.K. O'Neill
Assemblyman Stephen H. Silberkraus
COMMITTEE MEMBERS ABSENT:
None
Minutes ID: 871
*CM871*
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April 13, 2015
Page 2
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Kelly Richard, Committee Policy Analyst
Matt Mundy, Committee Counsel
Leslie Danihel, Committee Manager
Connie Jo Smith, Committee Secretary
Olivia Lloyd, Committee Assistant
OTHERS PRESENT:
Jennifer Stoll, Director, State Government Affairs, Allergan, Portland,
Oregon
Steven M. Friedlander, M.D., representing Nevada Academy of
Ophthalmology
Jeanette K. Belz, representing Nevada Academy of Ophthalmology
Adam Plain, representing Nevada Dental Association
Chairman Kirner:
[Roll was called, and a quorum was present.] I am going to take the bills out of
order. We will hear Senate Bill 217 (1st Reprint).
Senate Bill 217 (1st Reprint): Revises provisions relating to policies of health
insurance. (BDR 57-836)
Jennifer Stoll, Director, State Government Affairs, Allergan, Portland, Oregon:
I am the Director of State Government Affairs for Allergan. I am here to present
Senate Bill 217 (1st Reprint), which is sponsored by Senator Ben Kieckhefer.
This bill allows patients to get access to their prescription eye drops earlier than
the typical 30-day supply that most health plans recommend. Health insurers
treat eye drops just like they do pills. Eye drops offer a lot of different
challenges because many people have difficulty administering them in their
eyes. Today, we are lucky to have Dr. Steven Friedlander, who is an
ophthalmologist practicing in Reno, to talk more about patient care and,
specifically, why this is an issue.
Should patients not get access to an early refill of eye drops, they tend to run
out earlier, and this can lead to serious eye health problems, up to and including
permanent vision loss. Eye drops can be challenging to instill. It is easy to
accidentally lose a few eye drops in the process of putting eye drops in every
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April 13, 2015
Page 3
day. Many of these patients are elderly and may not have a steady hand which
can be arthritic. Others are visually impaired. Again, it can be very difficult to
put in eye drops. Almost 20 percent of patients have a difficult time putting
eye drops in their eyes.
According to the Glaucoma Research Foundation, it is normal for a bottle not to
last as long as the pharmacy would recommend it to be. About 21 percent of
patients are denied early refills to their prescription eye drops. It is a true
problem.
One of the interesting things about this bill is that it deals with a category of
drugs dominated by generics, so we are not talking about high cost or very
expensive drugs. It is not a mandate because we are not asking them to pay
for something they are already doing. This is within the standard formulary.
We are just asking for early refills so that if a patient goes in to the pharmacy
on day 21, he or she can get access to their prescription eye drops.
This is also not a new concept. It was introduced in many states and is law in
about a dozen states. It follows the guidance that is also put out by CMS,
which are the Centers for Medicare and Medicaid Services, for any Part D health
plan. I am asking for your support of S.B. 217 (R1).
Assemblywoman Bustamante Adams:
Can you repeat the percentage you said were denied?
Jennifer Stoll:
Based on pharmacy audits of claims, about 21 percent are rejected because
they are what is called "refilled too soon"―that is the edit that the pharmacist
gets. In other words, the patient goes in on day 26 or 27, and the prescription
is rejected.
Assemblywoman Bustamante Adams:
You talked about other states. Do you know which were the most recent states
that passed such language?
Jennifer Stoll:
The bill is moving through the Washington Legislature as we speak. It is going
to the floor out of the committee and will then be on its way to the governor.
It is law in Oregon, Utah, and many states on the East Coast.
Assemblywoman Bustamante Adams:
So it is just similar language regarding the other states, or did they modify it in
any way?
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April 13, 2015
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Jennifer Stoll:
Yes, it is almost identical language.
American Academy of Ophthalmology.
It is model language used by the
Assemblywoman Neal:
Section 7, subsection 2, states, "The provisions of this section do not affect
any deductibles, copayments or coinsurance established by the health care
plan." The person is going in before his or her prescription renewal, and it is
a new prescription, correct? Technically, if a patient is between prescriptions
and has a chance to go in and get a new prescription before that due date, does
that not count as two? If it is a refill, does a refill count against the person's
deductible?
Jennifer Stoll:
I can find that out for you. I think it would be plan specific, however. Again,
we have Dr. Friedlander here. He can talk about specific, real-world patient
experience, and I would defer to him for more information.
Assemblywoman Neal:
Yes, I would like a real-world example of what section 7, subsection 2, means
in terms of copayments and coinsurance established by your plan.
Chairman Kirner:
My experience with this is that if a person gets an early refill, based on your
insurance plan, the same copay is required. Dr. Friedlander, do you want to add
comments with regard to the real-world issue?
Steven M. Friedlander, M.D., representing Nevada Academy of Ophthalmology:
I am an ophthalmologist practicing in Reno and Carson City. I am past president
of the Nevada Academy of Ophthalmology and a member of the
American Academy of Ophthalmology (AAO). I serve on the state affairs
committee for the AAO, and I can support the statements that were made
that these bills are going through various states throughout the entire
country. These are patient advocacy bills. To speak to real-world examples, if
patients who have glaucoma―which is a chronic condition much like
hypertension―do not take the glaucoma medicine as prescribed daily, then they
have an increased chance of blindness.
To try to address the question, we are talking about a chronic course of
treatment. Patients are on these drops often for long periods of time, if not
their entire lives, based on having something like open-angle glaucoma. I can
see situations where patients would end up with 13 monthly refills in one year
instead of 12 refills. That may directly address how many copays they have to
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April 13, 2015
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make or their deductibles. Certainly that is going to be based on his or her
particular plan. The goal is to allow the patients to get the medicine to treat
their conditions so they do not go blind.
Assemblywoman Neal:
How do you prove what the bill calls "inadvertent wastage"? Let us say that
I am a glaucoma patient. To whom do I prove the inadvertent wastage,
my doctor or the pharmacist?
Steven Friedlander:
I am not sure we are talking about proving it. The fact is that many patients
have difficulty putting drops in their eyes. If you have ever put them in, you
know that sometimes the drops hit your cheek. Sometimes you think you have
a drop in, and you are not sure, and you put a second drop in. The drops are
not measured. If you need a month's supply of blood pressure pills, the patient
is given 30 pills. A bottle of eye drops is more variable as to how much you are
getting and how much you are dispensing. If you have to put in an extra drop,
or if one of the drops hits your cheek, or you squeeze the bottle too soon, then
you are going to be missing some medication. The goal is to make sure the
patient has his or her medication so they do not go blind.
Assemblyman Ohrenschall:
I can relate to your example with the hypertension medicine. I have been in
that situation where I can just get the 30-day supply. I was going out of town
and wanted to make sure I did not run out. I was having trouble finding my
pharmacy. I had to pay out of pocket for that. Would this prevent that
situation? I had to buy an extra month's supply just so I would have it. Would
this bill prevent that kind of situation for folks with the eye drops?
Jennifer Stoll:
Yes, that is the absolute intent of this bill. It would allow you to go in and get
your next month's supply for the copay or the coinsurance that you would
typically be charged for the month's supply.
Jeanette K. Belz, representing Nevada Academy of Ophthalmology:
To Assemblywoman Neal's question, if you look at section 13 of the bill, the
issue is subsection 2, paragraph (b), which states that the provisions of
subsection 1 do not authorize any refills in excess of the number of refills
indicated on the prescription by the prescribing practitioner. The idea is that
you are probably not getting 13 for 12 because you have a prescription for
12 monthly refills. But you might be getting your 12 in the necessary amount
of time, perhaps 10 or 11 months, so that you can get it when you need
it because you inadvertently waste it.
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Page 6
"Inadvertent wastage" is defined in section 13, subsection 3, paragraph (a),
as the loss due to difficulty applying the eye drops. If you look under
section 13, subsection 1, it refers to "the request of a patient having difficulty
with inadvertent wastage of a topical ophthalmic product, and pursuant to
a valid prescription which bears specific authorization to refill." So that has
to be indicated by the physician. You are right. You may not actually be
wasting the drops. It is possible, but the idea is that for folks who are, they will
receive the coverage when they need the drops, as opposed to going without
for several days at the end of a prescription. As Ms. Stoll mentioned, this is
consistent with what Medicare does as well.
Assemblywoman Neal:
If a person is traveling out of town and ends up overusing the drops, what
would he or she tell the doctor? Is that inadvertent waste if you left the eye
drops in your hotel room? What if a contact lens is not put in your eye just
right and you cannot take care of it. How do you go to your doctor and say,
I inadvertently wasted my medicine; please give me my next prescription.
Jeannette Belz:
All I can tell you is that it does happen in real life. There are those folks who
really do make a mistake with their prescriptions, as my mom did. When she
happens to mention on the 25th day of her 30-day prescription that the
pharmacy did not refill her eye drops, I panic because she has glaucoma.
Now she does not have drops for several days. I called her ophthalmologist and
got a small sample for her to tide her over through that period. I do not think
you can prevent someone from purposely wasting the drops, if that is what
he or she wanted to do, but that is not the intent of this bill. The intent of
S.B. 217 (R1) is to get the medication to the people who inadvertently waste it
so they will get their drops, the same number of eye drops, the same
12-month supply, but perhaps in less time so that they do not go without. I do
not know how you can legislate that away from them.
Chairman Kirner:
Are there those who are in support of this bill? Seeing no one, is anyone
opposed? Seeing no one opposed, is anyone neutral? [There was no one.]
Would those presenting the bill like to make closing comments?
Assemblywoman Carlton has a question.
Assemblywoman Carlton:
Apparently there is no room for error in these prescription bottles. They are cut
so precisely, and the bottles are not very big. The exact dosage is in that
bottle, so there is no room for error.
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April 13, 2015
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Jennifer Stoll:
The U.S. Food and Drug Administration heavily regulates the bottle sizes.
Chairman Kirner:
Seeing no other questions, do the presenters have any closing statements?
[They did not.]
I will close the hearing on S.B. 217 (R1) and turn the Chair over to
my Vice Chair to hear Senate Bill 159. [Assemblywoman Seaman assumed
the Chair.]
Senate Bill 159: Revises provisions relating to insurance. (BDR 57-829)
Adam Plain, representing Nevada Dental Association:
I am here in support of Senate Bill 159 on behalf of the Nevada
Dental Association. The aim of S.B. 159 is to make the lives of Nevadans
easier by ensuring that the final determinations on their dental insurance claims
are only reviewed by trained professionals. Let us acknowledge a reality:
consumers, doctors, and insurers do not always agree on the necessity of
a course of treatment.
Because of this, we have legal and contractual
protections that permit multiple levels of review before a claim is ultimately
accepted or denied. Current law requires the use of binding arbitration to
resolve disputes relating to independent medical evaluations. In instances
where the insurance company requests the independent medical evaluation, the
insurer is required to use a person who is certified to practice or is formally
educated in that field. Yet this consumer protection currently only exists for
medical and chiropractic care. There is no similar requirement for dental care.
That is not to say that some insurers do not offer this protection voluntarily by
contract, yet not all insurers do, and nothing prevents an insurer from ceasing to
voluntarily offer it as a business decision.
Senate Bill 159 adds the words "dentist" and "dental" to existing consumer
protection statutes to guarantee that Nevadans have access to an informed,
professional opinion on the final determination of his or her dental claims.
Assemblyman Ellison:
You said only professionals can read the final determinations when trying to
determine what the plans are. Could you explain?
Adam Plain:
If you look at the bill in section 1, subsection 3, it talks about the process for an
independent medical examination or evaluation. If you go to the doctor for
a procedure, and your physician says that you need to undergo a particular
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April 13, 2015
Page 8
course of treatment, the insurance company might say that the procedure is not
medically necessary. The insurance company can require you, as the patient, to
see a doctor of the company's choosing who will perform a physical evaluation
of you to determine whether, for instance, the knee replacement is necessary.
The current statute says when the insurance company sends you to the
physician of its choosing, the person the company sends you to has to be
a certified physician, or someone trained in that field of medicine. The bill, as
presented, would also make it so that if they require that same procedure for
a dental concern, you are sent to see a dentist or someone trained in a dental
field for that physical evaluation of your mouth and the surrounding organs.
Assemblyman Nelson:
What happens right now, in most cases, if they do not go to binding arbitration?
Do they go to the review panels, or do they have to file a lawsuit?
Adam Plain:
The contracts require binding arbitration as part of what is called the internal
review process. You go through this process where your claims are escalated
to different levels, and that is done internally. Once a certain point is reached
where you have exhausted all of your appeals through the internal review
process, you can get access to the external review process, where it goes from
an appeal to your insurance company to an appeal of a third party. In the state
of Nevada, for example, they may use the Governor's Office for Consumer
Health Assistance. If it is a plan through Medicare, say Medicare Advantage,
it may go through the Centers for Medicare and Medicaid Services, but it is
ultimately escalated to an outside source at that point.
Assemblyman Ohrenschall:
Do you envision this bill, if it passes, mostly being before the fact or after the
fact? If someone is in excruciating pain and the dentist says I need to do a root
canal or crown, most people are not going to say, "Let me wait and see if there
is going to be a denial, or if I go to arbitration." The patient is going to want
the pain alleviated and have it dealt with. Do you see this, if it passes, working
after the fact in terms of who gets stuck with the bill, or do you think this will
be before the procedure happens?
Adam Plain:
The answer depends on the type of claim being presented. To use a medical
example, let us say you have requested a knee replacement, and the doctor has
said you need to have your knee replaced. That would be something where the
insurance company requires prior authorization before the procedure even
occurs. If that prior authorization is denied, then you can escalate through the
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appeals process before the procedure occurs. If it is something that is more of
an emergent care, such as if you are in immediate pain, the doctor is more likely
to perform the procedure because it is an immediate concern. Then you are
going to be adjudicating whether the claim is paid or not. In those cases, an
independent medical examination or evaluation is made more difficult because
some treatment has already been administered, and you cannot see the person
in the condition prior to the treatment having been administered to make
that evaluation.
Assemblyman Paul Anderson:
I would like to clarify some of the problems we are running into. Are we saying
that we have medical professionals who are diagnosing things or giving
a prognosis on something that should be done by a dentist? Or are they
denying their ability to see a dentist on those particular issues?
Adam Plain:
Under the current statutory construction, if a dental provider were to say, my
patient requires this procedure and it needs prior authorization, it goes to the
appeals process. The insurance company would be under no legal requirement
to have a dentist actually examine that claim before it is denied. They would be
able to use administrative staff or other personnel to do that review.
Assemblyman Paul Anderson:
Are we seeing that happen? Are you seeing items denied by administrative
folks, or by doctors who might not have the expertise to give a proper prognosis
on that?
Adam Plain:
Yes, that does occur.
Vice Chair Seaman:
Does the Committee have any further questions? Seeing none, is there anyone
else who is in support of S.B. 159? [There was no one.] Is there anyone who
is in opposition to S.B. 159? [There was no one.] Is anyone neutral on
S.B. 159? [There was no one.] Would the presenter like to make a closing
statement? First, Assemblyman Nelson has a question.
Assemblyman Nelson:
Mr. Plain, do you represent the Nevada Dental Association?
Adam Plain:
Yes, I do, Assemblyman Nelson.
Assembly Committee on Commerce and Labor
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Page 10
Assemblyman Nelson:
You have received no opposition to this bill?
Adam Plain:
At the hearing on the Senate side, there was one interested party who was
opposed to the bill. That was a misunderstanding about the intent of the bill
and how the bill was structured. That was sorted out after hours, so to speak,
and the bill was passed without an amendment.
Vice Chair Seaman:
We will close the hearing on S.B. 159. Is there anyone who has any
public comment? Seeing no one, today's hearing is adjourned [at 3:02 p.m.].
RESPECTFULLY SUBMITTED:
Connie Jo Smith
Committee Secretary
APPROVED BY:
Assemblyman Randy Kirner, Chairman
DATE:
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April 13, 2015
Page 11
EXHIBITS
Committee Name: Assembly Committee on Commerce and Labor
Date: April 13, 2015
Time of Meeting: 2:34 p.m.
Bill
Description
Agenda
Attendance Roster
Exhibit
A
B
Witness / Agency